Community Bankers' Advisor

i  July - August, 2003

Page 2  


enforced only by all of them. If an instrument payable to two or more persons is ambiguous as to whether it is payable to the persons alternatively, the instrument is payable to the persons alternatively.

In another example, if a check is made payable to the order of "John Doe or Pete Smith," the "or" makes this check payable alternatively and either John or Pete can negotiate the check on his own. If the check is made payable to "John Doe and Pete Smith,” the "and" makes the check payable not alternatively and John and Pete must act together in order to negotiate the check. If the check is made payable in such a way that you can't be sure whether it is payable alternatively or not (it's ambiguous), the last sentence of § 41-03-10(4) allows you to treat the check as if it were payable alternatively. For example, if the check is payable to "John Doe and/or Pete Smith," you are authorized to treat the check as payable alternatively and either John or Pete can negotiate the check on his own.

We have a customer with severe arthritis who has taken to signing her checks with an “x” We sympathize with her plight, and so far we have accepted these checks without a word. We wonder if this is entirely prudent. Can customers sign checks from their deposit accounts with an "x?"
Answer:
Yes, they may sign with a mere “x.”. N.D.C.C. § 41-03-38(2) (UCC § 3-401(b) provides that:

“A signature may be made manually or by means of a device or machine and by the use of any name, including any trade or assumed name, or by any word, mark, or symbol executed or adopted by a person with present intention to authenticate a writing.”

In this case, a financial institution may want to take steps to protect against the increased likelihood of a forgery going undetected. For example, you may want to consider an authorization in which you have the customer grant the institution the authority to honor checks signed solely with an “x.” {Of course, this should be done in the presence of a notary since the customer will be signing the authorization with an “x.”}
Also, just for your information, the Official Comments to UCC § 3-401 state that a signature may be “made by a mark or even thumb print.” That being said, a financial institution or other entity may

 

still require proof of identification from one using a non-typical signature.

Does a notation or writing stating "paid in full" on a check affect how it's processed?
Answer:
No. Briefly, if the drawer or indorser puts “paid in full”on a check, the drawer or indorser is attempting to settle a debt with the person who is receiving the check. N.D.C.C. § 41-03-37 (UCC § 3-311) says that if the drawer or indorser meets certain conditions, then putting this sort of language on the check is effective and the underlying debt is "discharged." The person receiving the check has some options under these rules as well.
This language does not affect the paying bank or any collecting bank in any way, as these institutions have no way of knowing whether the debt is paid in full or not. Their responsibility is to follow their customers' instructions and pay the check.

What is the difference between Regulation P and the Gramm-Leach-Bliley-Act?
Answer:
In a nutshell, the Gramm-Leach Bliley Act is a federal law that contains, among other provisions, Title V, Subtitle A covering the "Disclosure of Nonpublic Personal Information.” The privacy regulation (Regulation P) enacts Gramm-Leach Bliley. Together the two focus on an institution's privacy policies and practices and require notices to be given to consumers and customers. The relationship between the two is like that between the Truth in Lending Act and Regulation Z - the first is the law and the second is the regulation that enacts the law.

I have recently heard mention of a"Waiver of Interest" form. What is this used for?
Answer:
A Waiver of Interest is typically used in situations when the lender places value on a guarantor's jointly-held assets, but the guarantor's spouse does not guaranty the borrower's obligations. The Waiver of Interest provides that the non-guarantying spouse waives his or her claims to the jointly-held assets in the event the lender obtains a security interest or judgment.

We intend to obtain a guaranty from a sole proprietorship doing business as. Should the d/b/a or the individual owner's name be used?
Answer:
The individual owner's name should be used, since a d/b/a is not a legally-recognized entity like a corporation. The d/b/a may be used in addition to the individual's name, but it should never be used instead of the individual's name.

Previous PageNext Page

Gold Bard

Firm Profile | Attorneys | Newsletter | State Government | Links | Contact Us | Home

Copyright 1998-2002 Olson & Burns, P.C., all rights reserved.
This website is presented for information purposes only and is not intended to provide legal advice.